3 injunctive relief is brought on behalf of Petitioners, who fled war-torn Vietnam, were4 accepted by the United States as refugees before July 12, 1995 and have resided in5 the United States since they were young children or teenagers. As a result of abrupt6 and unlawful actions by Respondents, Petitioners currently face unwarranted and7 indefinite immigration detention.2.Petitioners became lawful permanent residents of this country many8

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

9 years ago but, based on criminal convictions, lost their green cards and were ordered10 removed from the United States. Although Petitioners have final orders of removal,11 they cannot be repatriated under the existing repatriation agreement between the12 United States and Vietnam. See Agreement Between the Government of the United13 States and the Government of the Socialist Republic of Vietnam on the Acceptance114 of the Return of Vietnamese Citizens. The agreement does not allow for the15 repatriation of Vietnamese immigrants who came to the United States before July 12,16 1995 (apre-1995 Vietnamese immigrantsa), a population that is largely comprised of17 refugees who fled Vietnam after the war to escape persecution under the new18 communist regime.19

3.

United States Immigration and Customs Enforcement (aICEa) has had a

20 longstanding practice of releasing pre-1995 Vietnamese immigrants with final orders21 of removal due to legal constraints on their detention authority. Recognizing that22 removal of pre-1995 Vietnamese immigrants are anot subject to return to Vietnama23 under the repatriation agreement, ICE has typically released these immigrants on24 orders of supervision within 90 days of their removal orders becoming final. The25

A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A 126 A This agreement can be found on the U.S. Department of Stateas website. SeeAttachment A (Agreement Concerning the Acceptance of the Return of Vietnamese27 Citizens, U.S.- NAM., Jan. 22, 2008, 08 a 43, https://www.state.gov/documents/organization/108921.pdf.)A 28 A Case No. 8:18-cv-316a1aHABEAS CORPUS CLASS ACTION PETITION AND CLASSACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

repatriation agreement has thus given thousands of pre-1995 Vietnamese immigrantsthe opportunity to return to their families and communities to rebuild their lives.4.

In 2017, ICE abruptly departed from past enforcement practices

pertaining to pre-1995 Vietnamese immigrants with final orders of removal. ICEbegan subjecting pre-1995 Vietnamese immigrants to much longer periods of postremoval order detention, in some cases as long as eleven months. ICE also began redetaining without notice pre-1995 Vietnamese immigrants all across the UnitedStates who had been living peaceably in their communities on orders of supervisionfor years or decades.5.

ICEas enforcement tactics have sown fear in Vietnamese refugee

communities around the country. Immigrants from other countries that have alsohistorically refused to accept immigrants for repatriation, including Cambodia,Somalia, and Iraq, are similarly experiencing indiscriminate ICE arrests, which arethe subjects of pending legal actions as well.

See, e.g., Nak Kim Chhoeun, et al. v.

David Marin, et al., United States District Court, Central District of California, CaseNo. 8:17-cv-01898-CJC (GJSx).6.

At the time of this filing, Petitionersa counsel are aware of

approximately 40 pre-1995 Vietnamese immigrants with final orders of removalacross the country who are beyond 90 days of post-removal order detention. Thetotal number of similarly situated individuals is likely much larger. Furthermore, oninformation and belief, ICE intends to continue to detain pre-1995 Vietnameseimmigrants with final orders of removal. The number of Vietnamese with finalorders of removal who are at risk of future detention is between 8,000 and 10,000.Based on ICE estimates from 2008, an overwhelming percentage of these individualsarrived in the United States before July 12, 1995.7.

ICE has undertaken its detention campaign without any evidence that

Vietnam will accept pre-1995 Vietnamese immigrants that have been or will be

detained. The repatriation agreement has not been rescinded or modified by eithercountry. Given Vietnamas longstanding policy of categorically denying repatriationto pre-1995 Vietnamese immigrants, memorialized in the existing and validrepatriation agreement, detention of Petitioners without an individualized andspecific showing that Vietnam actually intends to accept them is unlawful.

6789

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

1011

8.

detention past 90 days, and often past 180 days, without providing them anymeaningful custody review to determine whether continued detention is warrantedbecause they pose a danger or flight risk. ICE cannot lawfully detain Petitionersabsent an individualized showing of danger or flight risk before a neutral decisionmaker, especially as their detention becomes more prolonged.

Venue is proper in the Central District of California under 28 U.S.C. ASS

1391(e) because Respondents are federal officers sued in their official capacity;Respondents Marin and Hutchens are based in this district; Petitioners Hoang Trinhand Vu Ha and numerous class members reside in this district; Petitioners HoangTrinh and Vu Ha and numerous class members are currently detained in this district;and a substantial part of the events or omissions giving rise to these claims occurredin this district. Venue is also proper under 28 U.S.C. ASSASS 2241 et seq., as Respondentsexercise control over Petitioners. Armentero v. INS, 340 F.3d 1058, 1069-70 (9th Cir.

California who legally entered the United States from Vietnam as a four-year-oldrefugee in 1980. He subsequently adjusted his status to become a lawful permanentresident. His parents, now married for more than 50 years, raised a large CatholicfamilyaHoang and his six sistersathat centered around helping build a thrivingfamily business: a neighborhood bakery. Hoang later married and now has twochildren, an 18-year-old daughter who attends California State University, LongBeach, and a 13-year-old son. Hoangas wife, two children, parents, and six sisters areall United States citizens. Hoang has no remaining family in Vietnam. In early 2015,Hoang was arrested on a drug charge, for which he served one year in prison. Afterallegedly being found in possession of a marijuana plant in 2017, Hoang wasincarcerated in Orange County before being transferred to ICE custody. He wasordered removed from the United States on July 27, 2017 and has remainedincarcerated at the Theo Lacy Facility in Orange County for the past almost sevenmonths. Hoang has never been interviewed by the Vietnamese government regardingrepatriation to Vietnam.12.

Petitioner Vu Ha is a 37-year-old resident of Orange County, California

who legally entered the United States from Vietnam as a 10-year-old refugee in1990. He became a lawful permanent resident shortly after his arrival to the United

States. His parents are United States citizens, as are his sister and his 13-year-olddaughter. An artist and avid runner, Vu has primarily worked at the nail salon hismother owns. He was arrested three times as a young adult between the years 2000and 2005, with the most serious offense being robbery. In 2017, Vu was arrested anddetained for failing to pay a citation for driving without a license. He was thentransported from a county jail to ICE custody in May 2017. He was ordered removedfrom the United States on September 19, 2017 and has remained incarcerated at theAdelanto ICE Processing Center in Adelanto, California for the past five months. Vuhas never been interviewed by the Vietnamese government regarding repatriation toVietnam.13.

Petitioner Long Nguyen is 41-year-old resident of Charleston, South

Carolina, who legally entered the United States as an eleven-year-old refugee in1987. He became a lawful permanent resident the following year. He is now marriedto a United States citizen and has a two-year-old daughter and three stepdaughterswho are all United States citizens. His parents also reside in the United States aslawful permanent residents. The Nguyen family is active in their local Catholicchurch, and Long and his wife have worked together for many years in the nail salonhe manages. Longas only felony offense involved a nonviolent drug charge in 2006,in Kansas City, Missouri. In September or October 2011, ICE detained Long uponhis reentry to the United States after traveling abroad. He was ordered to be removedfrom the United States on April 18, 2012 and subsequently released on an order ofsupervision under which he consistently and reliably reported to ICE. Then, onOctober 19, 2017, Long was pulled over while driving to work and re-detained byICE officers. He has been held at the Stewart Detention Center in Lumpkin, Georgiasince then, for the past four months.14.

Petitioner Ngoc Hoang is a 44-year-old resident of Gwinnett County,

Georgia who legally entered the United States in 1990 as a refugee. Both of his

parents and his only sibling are United States citizens. Ngoc was married to a UnitedStates citizen with whom he has four children, ages 16, 14, 13 and 11, all of whomare United States citizens. All of his children now live with Ngoc and his secondwife; he is the primary provider for his family, working as a nail salon technician. Hehas no family remaining in Vietnam. In 1994, Ngoc pleaded guilty to check fraud inWashington, and in 2010, he was placed on probation in Georgia for simple assaultand simple battery. He was ordered removed from the United States onDecember 12, 2012 and subsequently released on an order of supervisionapproximately two months later. Over the next almost five years, Ngoc consistentlycomplied with the requirements of his order of supervision. On the morning ofNovember 6, 2017, Ngoc was suddenly re-arrested by ICE officers at his home andhas been held at the Stewart Detention Center in Lumpkin, Georgia or the IrwinCounty Detention Center in Ocilla, Georgia in ICE custody for the past almost fourmonths. Ngoc has never been interviewed by the Vietnamese government regardingrepatriation to Vietnam and has not been given a 90-day custody review by ICE.15.

Respondent Thomas D. Homan is the Deputy Director and Senior

Official Performing Duties of the Director of ICE. As the head of ICE, an agencywithin the United States Department of Homeland Security that detains and removesnoncitizens, Respondent Homan is a legal custodian of Petitioners and all classmembers. Respondent Homan is an appropriate respondent for this habeas actionbecause, on information and belief, decisions regarding the detention of pre-1995Vietnamese immigrants are being made at ICE Headquarters and because Petitionersand class members are often transferred between different regions of the country.16.

Respondent Kirstjen M. Nielsen is the Secretary of the United States

Department of Homeland Security. She is responsible for the implementation andenforcement of the immigration laws and oversees ICE. Respondent Nielsen hasultimate custodial authority over Petitioners and all class members.

United States. As the head of the United States Department of Justice, whichoversees the immigration courts, Respondent Sessions shares responsibility forenforcement of the immigration laws with Respondents Kirstjen M. Nielsen andThomas D. Homan.18.

California, which holds a contract with ICE to detain noncitizens. RespondentHutchens is responsible for the operation of the Theo Lacy Facility in Orange,California, where Petitioner Hoang Trinh is detained.20.

Respondent Doe 1 is the warden at the Adelanto ICE Processing Center,

a private detention facility owned by The GEO Group, Inc., which holds a contractwith ICE to detain noncitizens. Respondent Doe 1 is responsible for the operation ofthe Adelanto ICE Processing Center in Adelanto, California, where Petitioner Vu Hais detained. On information and belief, the identity of the warden is not publicinformation, and therefore, Petitioner intends to amend the complaint to add thisrespondent at a later time.21.

23

All Respondents are sued in their official capacity.LEGAL BACKGROUND

24

Detention

2526

22.

Following a final order of removal, ICE is directed by statute to detain

27 an individual for 90 days in order to effectuate removal. 8 U.S.C. ASS 1231(a)(2). This28Case No. 8:18-cv-316a7aHABEAS CORPUS CLASS ACTION PETITION AND CLASSACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

If ICE fails to remove an individual during the 90-day removal period,

the law requires ICE to release the individual under conditions of supervision,including periodic reporting. ASS 1231(a)(3) (aIf the alien . . . is not removed within theremoval

period,

the

alien,

pending

removal,

shall

be

subject

to

supervision.a). Limited exceptions to this rule exist. Specifically, ICE amaya detainan individual beyond 90 days if the individual was ordered removed on criminalgrounds or is determined to pose a danger or flight risk. ASS 1231(a)(6). However,ICEas authority to detain an individual beyond the removal period under suchcircumstances is not boundless. Rather, it is constrained by the constitutionalrequirement that detention abear a reasonable relationship to the purpose for whichthe individual [was] committed.a Zadvydas v. Davis, 533 U.S. 678, 690 (2001)(citations omitted). Because the principal purpose of the post-final-order detentionstatute is to effectuate removal, detention bears no reasonable relation to its purposeif removal cannot be effectuated. Id. at 697.24.

The United States Supreme Court has accordingly construed Section

1231(a)(6) as authorizing post-final order detention only for a aperiod reasonablynecessary to secure removal,a a period that the Court determined to be presumptivelysix months. Id. at 699-701. After this six month period, if a detainee provides agoodreasona to believe that his or her removal is not significantly likely in the reasonablyforeseeable future, athe Government must respond with evidence sufficient to rebutthat showing.a Id. at 701. If the government cannot do so, the individual must bereleased.25.

However, detainees are entitled to release even before six months of

detention, as long as removal is not reasonably foreseeable. See 8 C.F.R. ASS241.13(b)(1) (authorizing release after 90 days where removal not reasonably

foreseeable). Moreover, as the period of post-final-order detention grows, whatcounts as areasonably foreseeablea must conversely shrink. Zadvydas at 701.26.

Even where detention meets the Zadvydas standard for reasonable

foreseeability, detention violates the Due Process Clause unless it is areasonablyrelateda to the governmentas purpose, which is to prevent danger or flight risk. SeeZadvydas, 533 U.S. at 700 (a[I]f removal is reasonably foreseeable, the habeas courtshould consider the risk of the alienas committing further crimes as a factorpotentially justifying confinement within that reasonable removal perioda) (emphasisadded); id. at 699 (purpose of detention is aassuring the alienas presence at themoment of removala); id. at 690-91 (discussing twin justifications of detention aspreventing flight and protecting the community). Thus, due process requires ameaningful determination that Petitioners pose a danger or flight risk that warrantpost-final-order detention, regardless of whether their removal can be effectuatedwithin a reasonable period of time.27.

The governmentas own regulations contemplate this requirement. They

dictate that even after ICE determines that removal is reasonably foreseeableaandthat detention therefore does not per se exceed statutory authorityathe governmentmust still determine whether continued detention is warranted based on flight risk ordanger. See 8 C.F.R. ASS 241.13(g)(2) (providing that where removal is reasonablyforeseeable, adetention will continue to be governed under the established standardsain 8 C.F.R. ASS 241.4).28.

The regulations, at 8 C.F.R. ASS 241.4, set forth the custody review

process that existed even before the Supreme Courtas decision in Zadvydas. Thismandated process, known as the post-order custody review, requires ICE to conducta90-day custody reviewsa prior to expiration of the 90-day removal period and toconsider release of individuals who pose no danger or flight risk, 8 C.F.R. ASS241.4(e)-(f). Among the factors to be considered in these custody reviews are aties to

the United States such as the number of close relatives residing here lawfullya;whether the noncitizen ais a significant flight riska; and aany other information thatis probative of whethera the noncitizen is likely to aadjust to life in a community,aaengage in future acts of violence,a aengage in future criminal activity,a pose adanger to themselves or others, or aviolate the conditions of his or her release fromimmigration custody pending removal from the United States.a Id.29.

Individuals with final orders who are released after a post-order custody

review are subject to orders of supervision. 8 C.F.R. ASS 241.4(j). After an individualhas been released on an order of supervision, ICE cannot revoke such an orderwithout cause or adequate legal process.

1112

FACTS

13

Vietnamas Repatriation Agreement with the United States

14

30.

In 2008, after ten years of negotiation, Vietnam and the United States

15 executed a repatriation agreement to govern the repatriation of certain Vietnamese16 immigrants with final orders of removal to Vietnam. Before this agreement was17 negotiated, Vietnam refused to repatriate the overwhelming majority of Vietnamese18 immigrants ordered removed from the United States.19

31.

Vietnam and the United States stipulated that the repatriation agreement

20 would be valid for five years from the date of its execution and then automatically21 extended for successive three-year terms thereafter absent at least six months written22 notice of an intent to terminate from one government to the other. See Agreement,23 Article 6, Entry into Force and Duration.24

32.

Upon information and belief, the repatriation agreement has not been

25 terminated or modified by either Vietnam or the United States.33. The repatriation agreement does not permit the repatriation of2627 Vietnamese immigrants who came to the United States before July 12, 1995. It28 expressly stipulates that aVietnamese citizens are not subject to return to VietnamCase No. 8:18-cv-316a 10 aHABEAS CORPUS CLASS ACTION PETITION AND CLASSACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

under this Agreement if they arrived in the United States before July 12, 1995.a SeeAgreement, Article 2: Removable Persons and Conditions of Acceptance. Thecategorical exemption of pre-1995 Vietnamese immigrants from repatriation reflectshumanitarian considerations related to the United Statesa role in the Vietnam War,the subsequent resettlement of Vietnamese refugees in America, and the continuingtension between the Vietnamese government and the Vietnamese refugees who wereforced to flee their homes to avoid profound hardship and persecution after the war.34.

The end of the Vietnam War caused hundreds of thousands of South

Vietnamese refugees to flee to the United States by boat or by air to escape politicalpersecution and death. Other Vietnamese immigrants who resettled in Americabefore July 12, 1995 were accepted to the United States to reunite with their lovedones or for other humanitarian reasons. The Vietnamese refugees who fled to theUnited States in the 20 years following the Vietnam War included those with closeties to the United States military or South Vietnamese government who feared fortheir lives under the new communist government and the hundreds of thousands ofaBoat Peoplea who poured out of Vietnam in rickety, wooden boats, desperate toescape communist re-education camps and other forms of political persecution.35.

Abandoned children of American soldiers and Vietnamese womena

known as aAmerasiansa and pejoratively referred to as the adust of lifea inVietnamawere also among the waves of Vietnamese immigrants who resettled inthe United States before July 12, 1995. In addition to growing up fatherless,Amerasians were roundly shunned by Vietnamese society for being mixed race andborn out of wedlock and in many cases rejected by their own mothers. Thesepunishing circumstances set Amerasians on a trajectory of homelessness and abjectpoverty. With physical features that betrayed them as the children of Americansoldiers, Amerasians became even more vulnerable to mistreatment after communisttakeover of Vietnam in 1975, as they carried the faces of those who had fought

against the North Vietnamese. After 1975, many were imprisoned in labor orreeducation camps. Recognizing the extreme persecution faced by Amerasians andacknowledging its responsibility towards these half-American children, the UnitedStates in the 1980s enacted laws that gave thousands of Vietnamese Amerasians theopportunity to leave behind a country that never accepted them in order start anew inthe homeland of their fathers.36.

These early Vietnamese refugees to America lacked resourcesaformal

education, English-language proficiency, a supportive ethnic community, or mentalhealth services to help cope with war-related traumaato ease their transition to anunfamiliar country. In addition, ad hoc resettlement practices dispersed theserefugees, often pushing them into economically deteriorating, high-crimeneighborhoods with under-resourced schools. While many Vietnamese refugees beatthe odds stacked against them to pursue higher education, start successful smallbusinesses, and build families in their new homeland, some were convicted of crimesthat resulted in orders of removal.37.

Vietnamas longstanding practice of refusing repatriation has for years

protected pre-1995 Vietnamese immigrants from being removed to the country theyfled to escape starvation, violence, and death. The exclusion of pre-1995 Vietnameseimmigrants from the repatriation agreement is central to maintaining human rightsprotections for this population. According to the U.S. Department of Stateas 2016Human Rights Report on Vietnam, the most significant human rights problems inVietnam are severe government restrictions of citizensa political rights.2 Most pre1995 Vietnamese immigrants are ex-citizens of South Vietnam, a country that ceasedto exist after North Vietnam prevailed in the war in April 1975, leaving hundreds ofthousands of South Vietnamese stateless. Many of those who were not immediately

A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A 227 U.S. Dept. of State, Vietnam 2016 Human Rights Report, 2016,https://www.state.gov/documents/organization/265598.pdf.28Case No. 8:18-cv-316a 12 aHABEAS CORPUS CLASS ACTION PETITION AND CLASSACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

evacuated from Vietnam were incarcerated for months or years in re-educationprisons, where they endured political indoctrination and forced physical laborbecause of their perceived threat and lack of loyalty to the new communistgovernment.38.

The repatriation agreement has also profoundly impacted the way pre-

1995 Vietnamese immigrants have handled their removal proceedings. Many ofthese immigrants, who faced the possibility of years in detention while litigatingtheir removal cases, at great financial cost which most could not afford, choseinstead to forego the pursuit of meritorious defenses based on the reasonableexpectation that they would not be deported to Vietnam.39.

Although the repatriation agreement officially opened the door for

repatriation of Vietnamese immigrants who arrived to the United States on or afterJuly 12, 1995, Vietnam continues to accept only a very limited number of personsfor repatriation each year and still regularly refuses to issue travel documents. Basedon publicly available information from ICE and from the Executive Office forImmigration Review, from 2008 to 2016, Vietnam only accepted an average of 13percent of individuals ordered removed to Vietnam each year. On information andbelief, a negligible percentage of the removals to Vietnam have been removals ofpre-1995 Vietnamese immigrants, consistent with the repatriation agreement.40.

Because of the exclusion of pre-1995 immigrants from the repatriation

agreement and the overall lack of cooperation from the Vietnamese government, theUnited States government has been unable to carry out most orders of removal toVietnam. Consequently, ICE has for years routinely released pre-1995 Vietnameseimmigrants with final orders of removal from immigration custody upon or evenbefore expiration of the 90-day removal period. Thousands of Vietnamese returnedto their families, their jobs, and their communities and built productive, peacefullives following completion of their removal proceedings.

in the United States with final orders of removal. According to ICE estimates, 6,200of the 7,700 Vietnamese who had final orders of removal in 2008 came to the UnitedStates before 1995, indicating that the vast majority of the 8,000 to 10,000Vietnamese with final orders of removal today are pre-1995 Vietnamese immigrants.

6

Unlawful Detention in Violation of the Repatriation Agreement

78

42.

Signed in January 2017, Executive Order 13768 announced a massive

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

9 expansion of immigration enforcement. Exec. Order No. 13,768, 82 Fed. Reg. 879910 (Jan. 25, 2017), The order identified arecalcitranta countries that refuse repatriation11 as a problem area and directed the Secretary of Homeland Security and the Secretary12 of State to implement sanctions on these countries. Id. at ASS 12.13

43.

ICE soon after began conducting widespread arrests of immigrants from

14 arecalcitranta countries, including Iraq, Cambodia, and Somalia, without requisite15 evidence that these countries would repatriate the individuals arrested, often16 followed by prolonged detention without due consideration to whether detention was17 necessary to effectuate their removal. Immigrants from these countries filed class18 action lawsuits around the country challenging ICEas unlawful denial of due process19 to their communities.20

44.

ICE likewise aggressively stepped up enforcement against the

21 Vietnamese community in 2017. It ended its practice of releasing pre-199522 Vietnamese immigrants from detention promptly following their orders of removal.23 Instead, deportation officers began holding pre-1995 Vietnamese immigrants for24 longer than 90 days, and often longer than 180 days, citing a directive from ICE25 Headquarters.45. In March 2017, ICE also began re-arresting pre-1995 Vietnamese2627 immigrants with final orders of removal whom it had previously released. Many28Case No. 8:18-cv-316a 14 aHABEAS CORPUS CLASS ACTION PETITION AND CLASSACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

were transported to Krome Detention Center in Miami, Florida to be interviewed bythe Vietnamese Consulate between March 20 and 31, 2017.46.

On September 21, 2017, the United States submitted 95 cases of

Vietnamese immigrants with final orders of removal to the Vietnamese governmentto consider for repatriation.47.

In October 2017, ICE again carried out mass arrests of Vietnamese

immigrants with final orders of removal who had returned to their communities onorders of supervisionaincluding pre-1995 Vietnamese immigrants. Arrests occurredin several states across the country, including Georgia, Pennsylvania, Texas,Colorado, and California. Many of the individuals arrested were transported toStewart Detention Center in Lumpkin, Georgia to be interviewed by the VietnameseConsulate between the end of October and beginning of November, 2017.Afterwards, they were transported to various detention centers for continueddetention.48.

In defense of ICEas abrupt change in policy and violation of the

repatriation agreement, the United States government claims that Vietnam is nowawilling to considera repatriation of Vietnamese who came to the United Statesbefore July 12, 1995. However, the government has not substantiated this claim withany official document memorializing Vietnamas alleged change in policy, and therepatriation agreement remains in effect. Further, the Vietnamese governmentasconduct does not signal any meaningful departure from its categorical refusal torepatriate pre-1995 Vietnamese immigrants, despite continued pressure from theUnited States.49.

On information and belief, the Vietnamese government has only issued

travel documents to seven pre-1995 Vietnamese immigrants. Moreover, oninformation and belief, Vietnam will not accept the deportation of any pre-1995individuals without an interview. Some Petitioners and class members have never

been interviewed by the Vietnamese Consulate and are therefore not beingconsidered for repatriation, yet remain in ICE custody.50.

During interviews conducted by the Consulate, Vietnamese officials

questioned individuals about whether they have any family living in Vietnam whocan support them if deported; whether they have any family living in the UnitedStates who will be impacted if deported; and whether they are willing to accept theirdeportation. On information and belief, Vietnam is extremely reluctant to issue traveldocuments to individuals like Petitioners who have no family in Vietnam; whosefamilies in the United States will suffer hardship as a result of their deportation;and/or who do not wish to return to Vietnam. In addition to Petitioners, the pre-1995Vietnamese immigrants detained by ICE include at least four Amerasians whomVietnam is highly unlikely to repatriate.51.

Despite the United States governmentas vague representations, the

Vietnamese governmentas conduct does not indicate that it truly intends to repatriatethe hundreds of pre-1995 Vietnamese whom ICE is currently detaining or will likelydetain under its current detention campaign.52.

ICE lacks any particularized evidence that Vietnam will accept

Petitionersa or class membersa repatriation. Despite this lack of proof thatPetitionersa and class membersa repatriation is significantly likely in the reasonablyforeseeable future, ICE has kept all Petitioners and class members past 90 days andsome past 180 days.53.

Furthermore, Petitioners and class members are being detained without

an individualized hearing before a neutral decision maker to assess whether detentionis warranted due to danger or flight risk. This includes Petitioners Ngoc Hoang andLong Nguyen and class members who for years consistently and reliably reported toICE as required under their orders of supervision.

custody reviews for Petitioners and other class members, they have been perfunctory,resulting in boilerplate decisions that merely rubberstamp continued detention. Someclass members have been told by ICE employees that Vietnamese with final ordersof removal will continue to be detained until the Vietnamese government issues atravel document, though some requests for travel documents have been pendingsince late October or early November 2017 and others since March 2017. Oninformation and belief, the refusal to release any pre-1995 Vietnamese immigrantsafter 90 days is driven by an ICE Headquarters policy being uniformly implementedacross the United States.CLASS ALLEGATIONS

1112

To the extent that ICE has been conducting any 90-day post-order

55.

Petitioners bring this action on behalf of themselves and all other

13 similarly situated persons pursuant to Federal Rules of Civil Procedure 23(a) and14 23(b)(2), and as a representative habeas class action for similarly situated persons15 pursuant to a procedure analogous to Rules 23(a) and 23(b)(2). See Ali v. Ashcroft,16 346 F.3d 873, 889-91 (9th Cir. 2003) (holding that the district court did not exceed17 its habeas jurisdiction in certifying a nationwide habeas class), withdrawn and18 amended on other grounds on rehag, Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2005);19 see also Geraghty v. U.S. Parole Commission, 429 F. Supp. 737, 740 (M.D. Pa.20 1977) (noting that aprocedures analogous to a class action have been fashioned in21 habeas corpus actions where necessary and appropriatea).56. Petitioners seek to represent the following classes: (1) all Vietnamese2223 nationals who arrived in the United States before July 12, 1995 and who have been24 or will be detained by ICE for more than 90 days after receiving final orders of25 removal (a90-Day Classa); and (2) all Vietnamese nationals who arrived in the26 United States before July 12, 1995 and who have been or will be detained by ICE for27 more than 180 days after receiving final orders of removal (a180-Day Classa).28Case No. 8:18-cv-316a 17 aHABEAS CORPUS CLASS ACTION PETITION AND CLASSACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

impracticable. Petitioners have identified at least 45 pre-1995 Vietnameseimmigrants with final orders of removal presently in ICE custody in just 20 of ICEas111 detention facilities. At least 37 of the 45 have been detained for more than 90days; 18 of those 37 have been detained for more than 180 days. The total numbersof 90-Day Class members and 180-Day Class members are likely much higher.Further, 8,000 to 10,000 Vietnamese immigrants in the United States currently havefinal orders of removal. ICEas aggressive detention of these individuals as part of aHeadquarters-driven decision means the 90-day Class and 180-day Class willcontinue to grow.58.

Petitionersa claims are typical of the claims of the proposed classes. In

addition, Petitioners will fairly and adequately represent the interests of all membersof the proposed classes. Petitioners seek relief that is identical to the relief sought bymembers of each class, and they have no interests that are adverse to other classmembers. Petitioners have retained counsel who have experience in immigration lawand class action litigation and will adequately represent the interests of the classes.59.

Multiple questions of law and fact are common to members of the

proposed classes, including:a.

Whether the 90-Day Class members and 180-Day Class members have

shown good reason to believe that their removal is not reasonably foreseeable;b.

Whether Respondents have sufficient evidence that the 90-Day Class

membersa and 180-Day Class membersa removal is reasonably foreseeable to justifycontinued detention given that they are specifically excluded from repatriation underthe repatriation agreement; andc.

Whether Respondents have afforded 90-Day Class members and 180-

Day Class members individualized determinations of the need for detention thatsatisfy Section 1231 and due process.

Class and 180-day Class, thereby making the final injunctive relief and declaratoryrelief sought by the Petitioners appropriate with respect to the class as a whole.

45

CLAIMS FOR RELIEFCount One: Unlawful Detention Where Removal Is Not Reasonably Foreseeable

6789

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10

13

161718

21

63.

24252627

Petitionersa and class membersa removal is not significantly likely to

occur in the reasonably foreseeable future because they are specifically excludedfrom repatriation under the repatriation agreement.64.

The 90-Day Class membersa Zadvydas claim is ripe because the six-

month period set forth in Zadvydas is a rebuttable presumption, not a rule. Thepresumption is rebutted by a repatriation agreement that expressly excludes pre-1995Vietnamese immigrants from repatriation, along with Vietnamas historical refusal toaccept them.65.

Through the repatriation agreement and Vietnamas historical practice,

Petitioners and class members have made their initial showing under Zadvydas ofagood reason to believea that their removal is not reasonably foreseeable. Id. at 701.

2223

Post-removal order detention violates Section 1231 where removal is

constitutional due process.

1920

62.

Davis, 533 U.S. 678 (2001). Detention under these circumstances also violates

1415

The foregoing allegations are realleged and incorporated herein.

not significantly likely to occur in the reasonably foreseeable future. Zadvydas v.

1112

61.

66.to

Petitioners and class members have shifted the burden to Respondents

produce

individualized

evidence

that

their

removal

is

reasonably

foreseeable. Respondents lack such evidence, yet continue to detain Petitioners andclass members in violation of Section 1231 and constitutional due process.67.

Section 1231 and due process under the United States Constitution unless it isreasonably related to the governmentas purposes of preventing flight and protectingthe community. Zadvydas, 533 U.S. at 690-91.70.

Respondents are subjecting Petitioners and class members to months of

detention without any individualized determination that they pose a danger or flightrisk that would justify their detention.71.

The only procedure the government has providedaadministrative post-

order custody reviewsais inadequate to satisfy the requirements of dueprocess. Moreover, the government is not meaningfully conducting these post-ordercustody reviews in compliance with its own regulations but is merelyrubberstamping continued detention with respect to the Petitioners and classmembers as a whole.72.

Respondents may not continue to detain Petitioners and class members

without individualized determinations by impartial adjudicators of whether detentionis justified based on danger or flight risk.

192021222324252627

PRAYER FOR RELIEF73.

WHEREFORE, Petitioner respectfully requests that the Court grant the

following relief:a.

Assume jurisdiction over this matter;

b.

Certify this matter as a class action, name Petitioners Vu Ha, Long

Nguyen, and Ngoc Hoang as class representatives of the 90-Day Class, namePetitioner Hoang Trinh as class representative of the 180-Day Class, and appointPetitionersa counsel as class counsel;c.

members for whom Respondents lack individualized evidence that removal issignificantly likely to occur in the reasonably foreseeable future;

4567

e.

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

1011

Order Respondents to release Petitioners and all class members from

detention absent an individualized determination by an impartial adjudicator that theirdetention is justified based on danger or flight risk, which cannot be sufficientlyaddressed by alternative conditions of release and/or supervision;

89

Order Respondents to release from detention Petitioners and all class

f.

Award Petitioners reasonable attorneysa fees and costs under the Equal

Access to Justice Act, 28 U.S.C. ASS 2412, and on any other basis justified under law;andg.

Grant any other and further relief as the Court deems just and proper.

AGREEMENTBETWEENTHE GOVERNMENT OF THE UNITED STATES OF AMERICAANDTHE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAMONTHE ACCEPTANCE OF THE RETURN OF VIETNAMESE CITIZENS

The Government of the United States of America (hereinafter called"the U.S. Government") and the Government of the Socialist Republic ofVietnam (hereinafter called "the Vietnamese Government"),With a wish of developing friendly relations between the two countries,and to establish procedures for competent authorities of both countries on theprompt and orderly acceptance of Vietnamese citizens who have been orderedremoved by the U.S. Government,In order to establish common procedures for the relevant authoritiesbased on the legal principles of each country and the internationalresponsibility to accept the return of repatriated citizens; and to followrecognized principles of international law, to allow for a case-by-casedetermination of repatriation, and to recognize the right of the receivingcountry to determine nationality,Have agreed to the following:Article 1General Provisions

1. The U.S. Government will carry out the repatriation of Vietnamesecitizens who violated U.S. law in accordance with U.S. and international lawand the provisions of this Agreement. The repatriation should take intoaccount the humanitarian aspect, family unity and circumstances of eachperson in each individual case.2. The Vietnamese Government may consider the return of its citizenswho violated U.S. law based on the consideration of legal procedures and the

status and circumstances of each individual case. The subject individuals andthe acceptance procedure will be based on the terms of this Agreement.3. Repatriation will be carried out in an orderly and safe way, and withrespect for the individual human dignity of the person repatriated. The U.S.Government will allow Vietnamese citizens who have been ordered removeda reasonable time to arrange their personal affairs before returning them toVietnam.4. Persons repatriated under this Agreement have the right to transfertheir legal money and personal property to Vietnam.5. The U.S. Government will pay for the cost of returning to Vietnampersons repatriated under this Agreement, as provided in Article 5 and Annex1. The U.S. Government will also pay for the cost of returning to the UnitedStates any person who was mistakenly repatriated, in accordance with Article3 of this Agreement.Article 2Removable Persons and Conditions of Acceptance

1. The Vietnamese Government will accept the return of Vietnamesecitizens in accordance with Article 1 and item 2 of Article 2 of thisAgreement, if upon investigation the individual meets the followingrequirements:(a) The individual is a citizen of Vietnam and is not a citizen of theUnited States or of any other country;(b) The individual previously resided in Vietnam and has no currentresidence in a third country;(c) The individual has violated U.S. laws and has been ordered bycompetent authority removed from the United States; and(d) If the individual has been convicted of a criminal offense (includingimmigration violation), the person will have completed any imprisonmentbefore removal, and any reduction in sentence will have been ordered bycompetent authority.2. Vietnamese citizens are not subject to return to Vietnam under thisAgreement if they arrived in the United States before July 12, 1995, the dateon which diplomatic relations were re-established between the U.S.A

Government and the Vietnamese Government. The U.S. Government and theVietnamese Government maintain their respective legal positions relative toVietnamese citizens who departed Vietnam for the United States prior to thatdate.3. In the case of a citizen of Vietnam who immigrated to the UnitedStates from a third country where that person had a permanent residence andwho has been ordered removed from the United States, the U.S. Governmentwill seek to return that person to the third country or consider allowing thatperson to stay in the United States, before requesting removal to Vietnam.4. In any case where the Vietnamese Government obtains informationrelevant to the repatriation of an individual that was not previously consideredby the U.S. Government, the Vietnamese Government may request ahumanitarian reconsideration based on the specific circumstances of therepatriated person in accordance with United States law.Article 3Return of Persons Repatriated in ErrorUpon notice by the Vietnamese Government that a person returned toVietnam by the U.S. Government does not meet all criteria mentioned inArticle 2 of this Agreement, the U.S. Government should promptly receivethe return of that person to the United States without any special procedure.Article 4Acceptance Procedures1. When the U.S. Government believes that a removable person is acitizen of Vietnam and meets all criteria within Article 2 of this Agreement,the U.S. Department of Homeland Security, on behalf of the U.S.Government, will request appropriate travel documents from the VietnameseGovernment and will forward the appropriate files to that Government. Suchfiles will include three sets of documents, the original and two copies. Theoriginal and one copy shall be forwarded to the Vietnamese Ministry ofPublic Security (Immigration Department) by the U.S. Embassy in Vietnam,and the other copy will be sent to the Vietnamese Ministry of Foreign Affairs(Consular Department).Each file will contain a diplomatic note which requests that theVietnamese Government accept the returnee, the name of the person the U.S.Government believes should be repatriated to Vietnam, the appropriate formscompleted by such person (an example of which is provided in Annex 2 of

this Agreement), a copy of the order of removal, and other documentsregarding the person's biography, citizenship, criminal history, sentenceimposed, and decision of amnesty or reduction of criminal sentence. Theorder of removal will be translated into Vietnamese on the standard form, andthe criminal history will include a National Crime Information Center (NCIC)record in English accompanied by a code key translated into Vietnamese. Alldocuments and translations will be certified by the competent U.S. authorities.2. Upon request by the Vietnamese Government, the U.S. Governmentwill arrange and facilitate the interview of persons who fall within Article2(1) of this Agreement by Vietnamese immigration officials to determineinformation regarding the Vietnamese citizenship, biographical data, and lastplace of residence of such persons. The U.S. Department of HomelandSecurity will arrange a venue for those interviews. The U.S. Government alsowill facilitate interviews by U.S.-based consular officers of the VietnameseGovernment of deportable persons whom the U.S. believes to be Vietnamesecitizens.3. The Vietnamese Government will provide a prompt response to theU.S. Government on cases referred under this Article after the Vietnameseverification is made. If it is determined that a person whose name and file hasbeen provided to the Vietnamese Government in accordance with this Articlemeets the requirements of Article 2, the Ministry of Public Security of theVietnamese Government will issue a travel document authorizing thatperson's return to Vietnam, and will provide written notification to the U.S.Embassy in Vietnam.4. When the Vietnamese Government has issued a travel documentunder this Agreement, the U.S. Government will provide at least fifteen (15)days notice of the flight and travel arrangements by which the person will bereturned to Vietnam. The U.S. Embassy in Vietnam will inform the Ministryof Public Security (Immigration Department) and the Ministry of ForeignAffairs (Consular Department) of the date and number of the flight, the timeof arrival, the port of entry (Noi Bai Airport in Hanoi or Tan Son Nhat Airportin Ho Chi Minh City), and the details regarding any U.S. officers escortingthe person to be returned (such as names, dates of birth, passport numbers,estimated times of stay in Vietnam, etc), and allow the Vietnamese side toconfirm receipt of the returnees.When a person under medical treatment is returned to Vietnam underthis Agreement, the escorting U.S. officers will provide a copy of the person'shealth record to the receiving Vietnamese officials at the port of entry. The

escorting and receiving officers will sign a joint report verifying the person'srepatriation.Article 5Expenses1. The U.S. Government will pay for the cost of transportingVietnamese citizens to Vietnam under this Agreement.2. The U.S. Government will pay for the costs of receiving repatriatedpersons including: verifying fee, the receipt at the airport and transportation ofthe persons from airport to the place of residences in accordance with theenclosed Annex 1.3. The U.S. Government will pay for the cost of arranging interviewsby relevant Vietnamese officials of persons whom the U.S. Governmentbelieves to be Vietnamese citizens and subject to repatriation under thisAgreement.4. The U.S. Government will pay for the cost of returning to the UnitedStates persons who were repatriated in error, as provided in Article 3 of thisAgreement.Article 6Entry into Force and Duration

1. This Agreement will enter into force sixty (60) days from the date ofsignature by both Governments.2. Upon entry into force, this Agreement will be valid for five years.The Agreement will be extended automatically for terms of three yearsthereafter unless written notice not to extend is given by one Government tothe other at least six months prior to the expiration date of the Agreement.Article 7Amendment and Supplementation

This Agreement may be amended or supplemented by writtenagreement of the Vietnamese Government and the U.S. Government throughappropriate diplomatic channels.

Any disputes regarding the interpretation and implementation of thisAgreement will be resolved through appropriate diplomatic channels.Article 9Suspension or Termination

This Agreement may be suspended or terminated by eitherGovernment. Such suspension or termination of this Agreement will comeinto effect after thirty days (30) from the date one Government receives thewritten notification from the other Government of its intention to suspend orterminate.Done at Hanoi, on 22 January 2008 in duplicate in the English andVietnamese languages, both texts being equally authentic.

Content1/ Expenses for verification (includingverification through the Vietnamese Embassy inthe U.S.,) and receipt at airports in Vietnam2/ Transportation fee for the repatriated personfrom airport to the place of residence